December 18, 2009

"Do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.”

The Judge is angry. Angry about Capitalization. It's getting on his Nerves. Could you lawyers please just write like a Normal Person.

36 comments:

AllenS said...

The judge is Angry.

Florida said...

Yeah, because when people are losing their homes the most important thing that the government needs to focus on is how things are fucking capitalized and punctuated.

That's what's really important.

Banks being able to produce actual promissory notes ... that's not vital.

But mis-capitalize a word?

Horrors.

Do you remember the moment, Ann, when it stopped being about justice?

John Lynch said...

Sir Archy need not apply.

Ann Althouse said...

"he judge is Angry."

Now, be fair. No lawyers are capitalizing adjectives. It's just nouns.

t-man said...

Do you suppose he wears a robe on the bench?

t-man said...

My pet peeve is when a district court judge writes "We conclude ..." rather than "I conclude ..." or even "The Court concludes ..."

If its truly "we" the judge could substite, "My law clerk and I conclude ..."

PatHMV said...

Good for him. There's a lot of lawyers out there woefully ignorant of the English language and its standard usages.

And Florida, perhaps you could make a list of all the problems of the world which must be solved first, before we're allowed to take just a few moments to discuss some lesser issues?

ricpic said...

What's a movant?

Ken said...

Yeah, because when people are losing their homes the most important thing that Florida needs to focus on is posting to a blog.

That's what's really important.

Banks being able to produce actual promissory notes ... that's not vital.

But miss a chance to post a preening self-righteous comment?

t-man said...

"it's" not its.

Boilerplate is boilerplate for a reason.

Somewhere, sometime, a judge thought the language was significant in some respect, and one side lost due to a turn of phrase. Rather than reinventing the wheel each time you are drafting, and taking the chance of leaving something out that a judge may later find to be significant, it is better (and less expensive for the client) to develop standard form "kitch sink" language for parts of a motion, contract, etc.

I'm not saying we couldn't use a good pruning, but cost pressures and fear of malpractice suits discourage that.

Bissage said...

Overworking the shift key ought not be a capital offense.

rdkraus said...

A Movant is a person who makes a claim or an application to a Court.

raf said...

Capitalizing nouns is a germanic thing. This judge is resisting what he sees as a slide into fascism.

but would lawyers writing like Normal People be a form of misleading representation?

wv: lions. Prideful? Animalistic? Lie on? And on and on and on....

David said...

HOW WOULD YOU LIKE ALL CAPS, YOUR HONOR?

rdkraus said...

HOW WOULD YOU LIKE TO SPEND THE NIGHT IN JAIL, MR. DAVID?

David said...

for the plaintiff
e.e. cummings
cummings, cummings & cummings
madison, wisconsin

statement of the case

David said...

BEEN THERE, DONE THAT, YOUR HONOR.

(offers hands for cuffs)

Ricardo said...

Judges have always been Control Freaks.

Mark O said...

He seems stupid enough to be a judge. All rise.

Scott said...

(Lawyers just fascinate the shit out of me.)

ark said...

I am curious to know what you think of the following usage, which I have seen from time to time: capitalizing words when they are intended to refer to a specific entity defined elsewhere in the document.

For example, a publication contract might begin by saying "This is a contract between xxx and yyy, hereinafter referred to as the Author and the Publisher, respectively."

It seems to me that this usage aids comprehension in two ways: (1) "Hereinafter" is a convenient abbreviation for "the part of this document after this point." (2) Capitalizing "Author" and "Publisher" effectively makes them into proper names, and clarifies that they are referring to a specific author and publisher.

In fact, I've seen this usage with the entire word capitalized (the AUTHOR), and it makes a lot of sense to me.

So what say you? Is this usage meaningless boilerplate, or is it a useful shorthand that adds to clarity?

d-day said...

I thought you were supposed to capitalize "Court" if you were actually addressing the court. When saying "The parties request that the Court order xyz relief" vs. "In other jurisdictions, courts have held."

I'd rather the judge think I was a doofus than a not showing the proper deference to authority. Damn asshole judges.

Lem said...

The Judge's Standing is at the precipice of normalcy.

PatHMV said...

ark, that usage is not a problem, and the judge is not talking about that sort of issue. The examples you describe can generally be referred to as defined terms, and it is common legal usage to capitalize them, for clarity that you are using the defined term rather than its normal more general reading. It also aids a reader going through the document in spotting all references to, say, the Lessor in a lease.

But where there's only one mortgage involved in a case, you don't need to define which "Mortgage" you are discussing. Then the capitalization just gets annoying.

traditionalguy said...

This judge has an inferiority complex. The Capitalised Words must intimidate him. But he can prove who has the most power over lawyers. He also probably fines lawyers $100 for being a few minutes late to court, no matter how bad the weather and traffic is that morning.

Beldar said...

When there is a real risk of confusion, then using defined terms can be very helpful.

For example, imagine a class action brought on behalf of everyone who'd purchased a particular series of corporate bonds issued by Acme Corporation. Imagine that there are subclasses among the buyers, whose precise rights under those bonds depend upon the calendar year in which they were purchased. In writing a brief or an opinion about this dispute, the writer might, at various times, wish to refer only to the members of one subclass (e.g., those who'd bought bonds in 2007); at other times he might want to refer to all of the plaintiffs collectively, without reference to their subclass; or he might want to refer to all purchases of any kind of corporate bond that were available in the marketplace at the same time (a group vastly larger than the set of purchasers of this particular bond).

Referring simply to "bond purchasers" in such a setting would be ambiguous and therefore confusing. Defined terms like "Acme Buyers" and "Acme 2007 Buyers" can entirely avoid the confusion.

Likewise, defined terms can help readily and clearly distinguish between entities with similar names. I recently participated in a case in which two Italian companies with similar names -- based on a surname common to two unrelated families -- were suing and countersuing one another over the extent of their respective tradename rights. On one side was "Officine Nicola Galperti & Figlio S.p.A.," and it had a Texas subsidiary named "Galperti Inc." On the other side was "Galperti S.R.L." It was essential that we come to a working agreement among all counsel and the judge on a shorthand version for distinguishing among these similarly-named entities. Using defined terms was obviously the way to do that. And so we ended up referring to them, respectively, as "S.p.A.," "Inc.," and "S.R.L."

I'll readily admit that many lawyers overuse defined terms. If there is only one person named Greenblatt involved in a lawsuit, there's no need to write a parenthetical upon his first introduction to set up a defined term for "Mr. Greenblatt." And if there's only one "Acme" entity involved, it's probably not imprudent to skip the initial definition (e.g., "Acme Corporation, a Delaware corporation with its principal place of business in Houston, Harris County, Texas ('Acme')")altogether.

However, refusing to use defined terms at all, or to permit their use, is a gross overreaction. In good legal writing, like good writing generally, one should use the tools that are appropriate; formally defined terms are one such tool, but they aren't always necessary or even helpful, and when they aren't, then they aren't appropriate to use.

WV: "mismse," which I imagine to be the whimsical but improper use of the modern honorific contraction "Ms."

traditionalguy said...

As a member of a minority and a victimised class, we Lawyers with German DNA demand Affirmative Action Capitalisation of ever word we see as an authoritative Word.

The Elder said...

“Write the way you would speak,” he says.

Oh, my! What a mistake THAT would be.

"So, ya know, it's like, Judge, you need to kinda like make the Debtor's lawyer sort of correct the things that were sort of left out of the bankruptcy petition. Ya know? It's like totally wrong!"

God help us all if lawyers actually were to write the way they speak.

Jason said...

A few years back, the Chief of Staff of the United States Army (peace be upon him), decreed that the word "soldier" shall be capitalized henceforth in all official Army correspondence.

The Marine Corps has had a fetish about that for some time, which I avoided playing into. One doesn't capitalize 'soldier' or 'sailor' as general noun, so I didn't capitalize 'marine' either, and enjoyed rubbing the fact in marine's faces when they tried to tell me I was supposed to capitalize 'marine.'

When writing Army correspondence, though, I no longer have a choice. Documents - even documents on a tight deadline - will be kicked back if the word 'soldier' is not capitalized throughout.

It's what happens when Soldiers spend too long at a Desk Job.

Anthony said...

The Judge undoes it all, with this:

“Write the way you would speak,” he says.

wv:ressid - a very decapitalized residual?

Joe M. said...

Perhaps "Could you Lawyers ..." would be preferable.

Prosecutorial Indiscretion said...

I'm on board with a lot of that, but it will be an icy day in hell when I stop capitalizing "Court" when referring to the specific court I'm addressing.

p.t. fogger said...

I'm with the judge on this one, mostly. Might seem petty, but when the bulk of your occupation involves reading arguments and fact patterns, incorrect usages begin to distract and grate. Before I practiced law I was a freelance writer and editor, & in a formal document grammar & usage errors just leap out at me. (The same is very not so in the context of, say, a blog post or comment!!)

As I think somebody pointed out above, when you are working in a context dominated by argument over the meaning of words and precedents as applied to particular facts, it helps further the clarity and precision of argument and decision when the lingo you're speaking is reasonably standardized and predictable. Improper capitalization may not seem like a threat, but it's the frayed edge of a full unraveling.

Eric said...

Yeah, because when people are losing their homes the most important thing that the government needs to focus on is how things are fucking capitalized and punctuated.

I don't see why everything has to be about people who were too stupid to get mortgages they could afford. Are any of them going to keep their houses if this judge allows spurious capitalization?

kentuckyliz said...

Germans capitalize Nouns.

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